Are you over 18? Have you considered making a Will and an Enduring Power of Attorney?
The common perception of Wills and Enduring Power of Attorney in rural Ireland is that such documents are only signed and entered into by those who are nearing “old age”.
This perception couldn’t be further from the truth. Provided you are 18 or older, both documents can be entered into at any age. Many farmers have not made or even considered making Will for fear it may bring about bad luck. However, both a will and an Enduring Power of Attorney can be viewed as something similar to an insurance policy or life assurance policy. It is not that anyone wants to use them but rather if they are needed then it is of some comfort to know they are in place and can be called upon. The same goes for A Will and an Enduring Power of Attorney once in place they can be called upon if needed.
As most people are aware, a Will sets out the instructions as to how you wish to divide your assets on your death. Depending on the circumstances it can also provide instructions as to how family members should be looked after and by whom. If a Will has not been executed this means the farmers estate will be divided in accordance with legislation and this is not always practical.
Thinking about death is never pleasant. However, if a Will is made then the division of assets is one less worry for family members to deal with, particularly in a farming situation. When making a Will the farmer will have decided who is/are the most appropriate person(s) to inherit lands and agricultural assets and who perhaps should inherit funds held in bank accounts etc.,
Likewise, the possibility of losing one’s mental capacity is never a welcomed thought. However, if a farmer’s mental capacity is lost or diminished in the future, they are then no longer able to make decisions. In that respect, similar to executing a Will it is advisable to also execute an Enduring Power Attorney, regardless of your age.
An Enduring Power of Attorney (EPA) is a legal document whereby power and authority are given to specified and trusted persons to deal and look after your affairs if god forbid you should suffer some form of mental incapacity Mental incapacity can take many forms for e.g brain damage, Alzheimer’s disease, dementia etc.,
Regrettably, most families in Ireland have a family member who has suffered some form of mental illness. Unfortunately this may happen at any stage or age in life. Tasks such as payment of everyday bills, managing their financial affairs may not only stressful but also impossible. This can be very upsetting for the farmer and their family. By executing an EPA, a farmer will have already decided who will look after their affairs and what powers their attorney will have.
If a farmer were to sadly lose their mental capacity and an EPA has not been executed the only manner in which his/her affairs can be managed is to have them made a Ward of Court. The Court will have the ultimate authority and power to deal with their assets and affairs. Generally, a Committee will be appointed and they will act on behalf of the farmer under the authority of the Court. The Committee may not necessarily comprise of people who the farmer would have appointed to look after his affairs, if the s/he had considered the matter whilst in the whole of their health!
An EPA only takes effect if mental capacity is lost at a later date. It does not take effect once executed. You continue to manage your own affairs. It can be looked on as something similar to an insurance policy. It is taken out as a protective measure. It is not something anyone wants to use but if it is needed, it is a reassurance to know it’s there.
The farmer will appoint specific persons, whom they trust look after personal care decisions. They can appoint anyone to act as attorney including any of the following;
- a spouse,
- a cohabiting partner,
- a child, and/or a friend.
To avoid the possibility of abusing an EPA the following safeguards are in place and must be met:-
- The attorney must register the EPA with the High Court through specified a office;
- The farmer must be notified of the attorney’s intention to make the application;
- The application must be based on a medical practitioner’s certificate confirming the farmer’s mental incapacity; and
- The two or more notice parties, as named in the farmers EPA must also be notified of the application to register the EPA.
The notice parties, which also include the farmer, have a period of 5 weeks to object to the registration of the EPA.
As stated above, the Attorney has the power to look after personal care decisions. Personal care decisions are defined within the Powers of Attorney Act 1996 to include decisions on any one or more of the following matters, depending on the contents of the EPA;
- Where and with who you should live;
- What training and/or rehabilitation you should receive;
dress and diet
- Who you should see and should not see;
- Inspection of personal papers; and
- Dealing with benefits including social welfare and housing.
It is important to note an attorney cannot make healthcare decisions on the farmers behalf. An EPA cannot validly confer the power onto an attorney to make healthcare decisions for another. Although, it would appear there is a very fine line between personal care decisions and health care decisions.
Regardless of age, perhaps we all, and in particular farmers, should take time and think what effect an untimely death or diminished mental capacity would have on us, our family and farm.
By obtaining legal advice and engaging in the process of making a Will and entering into an Enduring Power of Attorney perhaps such extremely difficult circumstances could be made a little less complicated and worrying.
Clarke Jeffers Solicitors ©2013